C&R Archives

Since 2004, USCIS policy required adjudicators to defer to prior determinations when reviewing nonimmigrant H or L Visa Petition extensions. Where the parties involved and the basic facts remained the same, there was a built-in bias toward approval. The October 23, 2017 Memorandum rescinds that policy.

Now adjudicators must “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.” This will require Petitioners to more thoroughly document petition extensions, even though the regulations at Title 8 C.F.R. specifically state that in some cases, initial evidence need not be submitted with these extension requests.

USCIS cites the undue burden placed on the Service by the prior policy. The Memorandum notes that adjudicators would have to request a separate file-possibly at another location-in order to determine if the original petition was properly approved, there has been a material change in circumstances, or there is new material information which adversely affects eligibility.

Moving forward, extra care must be taken when preparing an H-1 or L-1 petition extension in order to avoid the dreaded Request for Evidence.

This is just the latest step taken by the administration to negatively impact the lawful employment of foreign nationals-all in the name of protecting U.S. workers.

U.S. Citizenship and Immigration Services (USCIS) has announced that it will begin expanding in-person interviews for certain applicants for lawful permanent resident (green card) status. According to USCIS, this is “part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.”

Effective Oct. 1, USCIS will begin to phase-in interviews for the following:

Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status). Previously, applicants in these categories rarely required an in-person interview with USCIS in order for their application for permanent residency to be adjudicated.

Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.
Our office will be in touch to discuss how to prepare for the interviews as soon as we receive any interview appointment notices. Please contact us should you have any questions or concerns.

The Department of State has released the Visa Bulletin for the month of August.

Unfortunately, a backlog has developed and a cutoff date of April 1, 2015 has been established for the employment-based E-2 worldwide category in the “final action date” chart.* USCIS has announced that it will use this chart to determine whether an Adjustment of Status application can be filed.

Therefore, only applicants who have a “Priority Date” prior to April 1, 2015 will be able to file an Adjustment of Status application after July 31.

The Department predicts that the cutoff date for worldwide will again become current on October 1, 2017, the beginning of the new fiscal year. Historically, this has been the case when numbers have become backlogged during the months of August and September.

*the cutoff date for India is July 22, 2008 and the cutoff date for China is April 22, 2013.

June 26, 2017. The U.S. Supreme Court today issued a decision partially reinstating the travel ban set forth in President Trump’s Executive Order 13780 issued on March 6, 2017, while indicating that it will consider the case on its merits in the Fall term. Implementation of the ban was previously enjoined by decisions of the U.S. Courts of Appeal in the 4th and 9th Circuits.

Nationals of six Muslim majority countries are affected by the decision: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban sought to bar all nationals of these countries from entering the U.S. for a 90 day period, while the government reviewed the security issues involved in screening visa applicants.

In today’s decision, the Court allowed the ban to take effect except for those individuals who have a close familial relationship with a U.S. person, or a documented relationship with a U.S. entity. Examples provided by the Court include a person seeking to visit or live with a family member, a student admitted to a U.S. university, or a worker offered a job in the U.S.

Three Justices dissented and would have allowed the ban to apply to all foreign nationals from the designated countries. They were motivated in part by their concern that creation of these “exceptions” would lead to extensive litigation by prospective travelers and their U.S. contacts seeking to push the boundaries of the decision.

USCIS has recently announced that it has completed the random selection process for cap-subject H-1B Petitions filed during the first five days of April. The Service will begin returning cases that were not selected to Petitioners in the coming days along with all filing fees tendered. H-1B visas are still available in the following situations:

Extensions of H-1B status for foreign nationals currently employed in H-1B status by the petitioner

New employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can only be filed when H-1B visa numbers are available].

H-1B1 Petitions filed on behalf of citizens of Chile and Singapore (based on treaty obligations).

New Petitions filed by “Cap-Exempt” Petitioners: the following organizations are exempt from the “cap” and may obtain H-1B status for new employees at any time:

institutions of higher education

a nonprofit organization related to or affiliated with an institution of higher education

a nonprofit research organization or governmental research organization

(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)
Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education

Many of our clients are concerned about the President’s most recent Executive Order as it pertains to the immigration system, specifically the H-1B Temporary Worker category.

The Executive Order directs the heads of the agencies involved (DHS, USCIS, and DOL) to develop proposals in the coming months to modify the program to ensure that the most highly skilled and highly paid applicants have access to the H-1B visa. This will involve updating regulations, memos and other guidance to comport with the objectives of the Order. This will take time.

In the short term, nothing has changed as a result of this Order.

Also, USCIS announced on April 7, 2017 that it has received enough H-1B petitions to reach the statutory cap of 85,000 visas for fiscal year (FY) 2018 for both the regular cap and the master’s cap. As such, cap-subject employers may only file H-1B transfer applications or extension requests for applicants who have already been counted in a prior year’s cap.

Academic institutions and related non-profit organizations not subject to the cap can also continue to file until new regulations are adopted and implemented.

USCIS published a Final Rule in the Federal Register on November 18, 2016 implementing a number of provisions proposed at the end of 2015. USCIS described the stated goal of the rule changes as follows:

“These changes are primarily intended to better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions, while increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.”

The most important provisions of the new regulations are set forth below.

Retention of I-140 Priority Dates

The Beneficiary of an approved I-140 Visa Petition is entitled to retain the Priority Date in connection with a future I-140 in any employment category regardless of how much time has passed since the Petition was approved, unless the Petition was revoked for fraud, misrepresentation, or “material error.”

Retention of I-140 Petition Approval

In addition to retaining the Priority Date, the Petition remains approved despite withdrawal by the Petitioner or termination of the Petitioner’s business, if the withdrawal or termination of the Petitioner’ business occurs more than 180 days after the Petition was approved OR more than 180 days after an I-485 Adjustment of Status has been filed.

Employment Authorization (EAD) based on compelling circumstances

An EAD valid for one year may be available for the Beneficiary of an approved I-140 and family members if (1) the applicant is in E-3, H-1B, H-1B1, O-1 or L-1 status (2) there is no visa number available and (3) the applicant can show “compelling” circumstances.” While not defined, some examples provided include serious illness or disability, employer dispute or retaliation, serious harm to the applicant, and substantial disruption to the employer.

Applicants granted an EAD based on compelling circumstances will not be maintaining nonimmigrant status and will therefore generally be ineligible for Adjustment of Status. However, they will not accrue unlawful presence while remaining in the US and working with the EAD.

Automatic Extension of Expiring EADs

An application to extend an EAD may be filed up to 180 days prior to expiration. For certain nonimmigrant classifications, the EAD is automatically extended for up to 180 days beyond the stated expiration date provided a request for extension is timely filed. Unfortunately, this provision does not extend to all classes of foreign nationals who are eligible for EADs, including L-2 spouses and qualifying H-4 spouses. NOTE: DHS has eliminated the requirement that the USCIS adjudicate I-765 EAD applications within 90 days.

Supplement J to I-485

This new form will be required to confirm existence of a valid job offer if claiming I-485 portability, and can also be requested by the adjudicator to confirm the original I-140 job. This form will solicit very specific information about the job offer and the employer to insure that the offered position is consistent with the original approval.

H-1B Visa Status

The Beneficiary of an H-1B Petition may start work with a new Petitioner if a new H-1B Petition is filed while maintaining H status, OR while a timely filed Petition Extension is pending.

An extension of stay beyond the normal six year limitation in one year increments is available if a Labor Certification or I-140 Visa Petition is filed at least 365 days prior to the start date requested in the petition, even if that date is less than 365 days before the 6 year limitation is reached.

An extension of stay beyond the normal six year limitation in three year increments is available for H-1B workers who are the beneficiaries of an approved I-140 Petition and for whom, at the time the H-1B extension is requested, an immigrant visa number is not available due to per country limitations.

A position requiring state licensing may be approved without the license if the job duties can be fully performed under the supervision of a licensed professional OR failure to obtain a license is due to technical reasons such as lack of a Social Security number or employment authorization.

A Beneficiary counted under the H-1B cap may recapture any time spent outside the US in order to utilize the full 6 years available.

A Beneficiary counted under the H-1B cap who is absent from the U.S. for more than one year has the option to recapture time remaining within the six year limit without being subject to the cap. The Beneficiary also has option to seek a new 6 year period of stay by subjecting to the cap.

Grace Periods for Nonimmigrant Workers

A 10 day grace period allowed for E-1, E-2, E-3, L-1, and TN before and after their authorized period of stay. This is the same as the existing rule for H-1B, O-1, and P status.

A 60 day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN is provided upon termination of employment. This is limited to one 60 day period per authorized validity of underlying petition.

USCIS has increased filing fees for most petitions and applications postmarked or filed on or after December 23, 2016. Some of the increases are substantial. Following is a list of the new fees for some of the most commonly used petitions and applications:

The Visa Lottery enables 50,000 individuals from most countries of the world an opportunity to obtain a green card provided they meet certain minimal qualifications. In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc. For fiscal year 2018, 50,000 DVs will be available.

Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2018, natives of the following countries are NOT eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years:

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are also eligible.

For DV-2018, natives of Ecuador are now eligible to enter the program.

A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.” Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”

• the country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country-provided the spouse is eligible for a visa and will immigrate to the U.S. with the applicant; or

• the country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.

The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful applicant will also be eligible for immigrant status, regardless of their place of birth.

If selected, applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.

A successful applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net OnLine database, requires at least two years of training or experience. An applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S. For example, an applicant with a criminal record may be barred.

Entries for the DV-2018 DV program began on noon Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2016, and will close at noon, EDT, Monday, November 7, 2016. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) or DS-5501 at www.dvlottery.state.gov. Paper entries will not be accepted. We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 7, 2016.

Beginning May 2, 2017, DV-2018 entrants will be able to use their unique confirmation number provided at registration to check online through Entry Status Check at http://www.dvlottery.state.gov to see if their entry was selected. Successful entrants will receive instructions for how to apply for immigrant visas for themselves and their eligible family members. Confirmation of visa interview appointments will also be made through Entry Status Check.

We believe that anyone with access to the internet can complete the entry process without hiring an attorney or paying a fee to a third party, though it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process. PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED.

However, we strongly recommend that anyone selected in the lottery consult with an experienced immigration attorney to determine the best course of action and to identify any issues which may derail their application for a green card.